Over the past couple of days, there has been far too much emphasis placed on process and not nearly enough on privacy. While a PIA may be useful, the concerns with traveller surveillance are about far more than following the right process:

the CBSA has suggested that similar audio-visual surveillance is already in place in other airports without privacy impact assessments or public notices.

it appears the CBSA will have the capability of eavesdropping on conversations even though there is no evidence or even suspicion of wrongdoing.

the CBSA seems to think that a website notification is good enough to meet reasonable notice requirements.

As Ontario Privacy Commissioner Ann Cavoukian rightly notes, a website notice is completely unacceptable as a notification in the area where the conversation is being recorded is needed. Further, David Fraser argues that though details are still limited, the plans seemingly run counter to established Canadian law and could be subject to a constitutional challenge.

While it is impossible to provide a complete analysis given the still-limited details, we don’t need a privacy impact assessment to know that unlimited, warrantless eavesdropping on Canadians in major airports should simply be a non-starter. Canada doesn’t eavesdrop on private conversations without court oversight and reasonable and probable grounds to do so. That should remain true regardless of the location. Further, privacy impact assessments are not even binding, making it entirely possible that the government will simply ignore the Commissioner’s recommendations (much as they did with Bill C-30). In fact, given this week’s revelations, the Commissioner should not wait to receive a proposal for review. The law gives her office audit powers, which should be used immediately to conduct a full scale review of current border audio and video surveillance. Canadians have faced two serious threats to their privacy in recent months. There is no reason to wait for a third.

8 Comments

Privacy Compliance ConsultantI agree with your analysis and conclusion.
What this situation highlights is that the Federal Privacy Commissioner – along with many other commissioners / heads of arms length advisory agencies – are being walked over / ignored by this government. When I saw Asst commissioner Chantal Bernier carefully stepping around questions of whether her office had been in touch with the minister or CBSA before this situation was broken by the media, she was very cautious about her response – even though the facts appeared to be clear. If no PIA had been done – at earlier phases prior to implementation i.e. circumventing Treasury Board directives – there was support / connivance from at least the minister’s office for this to happen – otherwise funding for later phases through to implementation would not have been forthcoming.

I contrast this with the much better situation in Ontario – where Commissioner Cavoukian appears to be getting excellent cooperation from Ontario ministries and agencies – even to the point that former Alberta Privacy Commissioner has now assumed an executive position with eHealth Ontario – to work closely with that agency and Commissioner Cavoukian’s office & the Ministry of Health – to ensure that all privacy compliance issues are clearly addressed as Ontario moves into the Electronic Health Record world.

Watching for smugglers.It seems to me that the CBC footage to illustrate the story was taken at land borders. Pointing sensitive microphones to cars waiting in line at the border will give CBSA forewarning when returning citizens are conspiring to not declare foreign purchases.